Appeal No.	 EAT/646/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 April 1997

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
MRS E HART

MR C ENGLAND	APPELLANT

LONDON BOROUGH OF LEWISHAM	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	THE APPELLANT IN PERSON	

	MR JUSTICE MORISON (PRESIDENT):   The purpose of this hearing is to determine whether there is an arguable point of law raised by Mr England in his prospective appeal against a decision of an Industrial Tribunal held at London (South) on 27th and 28th February 1996. The written decision giving extended reasons was sent to the parties on 7th May 1996. 

	The complaint which Mr England made, which the tribunal unanimously dismissed, was that he had been discriminated against by the London Borough of Lewisham both on the grounds of his sex and his race in relation to his application for a position as a Housing Service Officer. He was not shortlisted for the job. He says that he was not shortlisted because of his sex and race. 

	The tribunal considered that application and made their findings.

	They record the fact that the applicant suggested that the employers were biased in favour of both black and other non-white persons and of women, and operated a quota system to give effect to such bias. He was of the view that as there was no white male on the selection panel of three his contention was supported. He said that it comprised two women, Ms Potts and Ms Forde and one black male Mr Mensura.

	Mr England had worked in a housing office for very many years, and therefore, as the tribunal noted, believed himself to be a first class applicant with an impeccable CV and qualifications. 

	The Industrial Tribunal heard evidence from one of the respondents’ housing services managers at the time and the chairman of the selection panel. She told the tribunal how they set about the selection process. There were 39 white applicants out of a total of 129. Normally the respondent authority has at least two people who vet applications in accordance with the recommendations of the Code of Practice by the Commission for Racial Equality and, I think, of the Equal Opportunities Commission. On this occasion there were so many applicants that they simply divided up the applications between two of the three members of the panel referring only to the third member of the panel when there was any particular difficulty. The procedure which was adopted is set out in paragraphs 5 and 6 of the Industrial Tribunal decision.

	The selection panel decided to use six criteria which were indicated with an ‘S’ in the person specification in deciding which of the job applicants to shortlist for interview. Only those of non-disabled candidates who appeared from their application forms to meet all these criteria would be called to interview.

	Ms Potts looked at the applicant’s application and using what is colloquially known as a ‘tick sheet’, scored the application form of the applicant. The applicant achieved on tick out of the six criteria, failing on the other five. The one he succeeded on was ‘good communication skills’.

	Amongst those criteria which he was not assessed as having proved or demonstrated to have met by his application form was an understanding of housing management and relevant legislation. Mr England says that that is remarkable conclusion to have been arrived at, bearing in mind his past previous considerable experience.

	As a matter of fact, although the local authority normally does know, for ethnic monitoring purposes, the ethnic origin of applicants for employment (and the shortlisting panel would have had that information in the normal course of events), it so happened that at the time of this shortlisting the members of the panel were unaware of the change in policy and that they could now  see information about ethnic origin. That information had been deleted from the application forms when the shortlisting decisions were taken. Accordingly those who were charged with the decision whether to shortlist would not have been aware of Mr England’s ethnic origin, and unlike him, this tribunal is not prepared to say that the name of an individual gives any significant useful information as to the individuals ethnic origin.

	Mr England wrote to the Borough saying that as he had not heard from them he must assume that he had not been selected for interview. He was right to take that view, because it had been made plain through documents accompanying the application forms that a failure to hear within six weeks should lead the candidate to assume that he had been unsuccessful. He further went on to say:

“In this circumstance it seems to me that you have discriminated against me, and I therefore wish to have answers to the attached questions which are put under the provisions of the race and sex discrimination acts.”

	It is to be noted that Mr England gave no circumstantial evidence or reason or explanation in this letter to the Borough as to why he was of the view that they may have discriminated against him on the grounds of race and sex. He did not use the form which has been specified for questionnaires of this sort. By following the specified form the applicant is required to set out the reasons why he considers that his treatment may have been unlawful, and invite the employers to accept or otherwise that their treatment of him has been unlawful. There is a warning provided for in the form which specifically draws attention to the failure of a party questioned to answer the questions fully and frankly. However, it would appear from the legislation that it is not an essential prerequisite that that particular form is used, although as we shall see in a moment, the Industrial Tribunal were in the circumstances not prepared to draw any adverse inference against the respondents by reason of their failure to answer the questions. 

	In fact the respondent Authority wrote back denying expressly that there had been any discrimination. Pointing out that the job applicants who were appointed as Housing Services Officers Vacancies were black, white, male and female; and refusing point blank to answer the questions appended to his letter. 

	It is the respondents’ view that if applicants are entitled to be given detailed answers as to why they have not been shortlisted it would be an inefficient use of their resources. In this case, as we have noted, there were 129 applicants and only 14 of them, I think, were eventually shortlisted. That would have meant explaining to 115 different people who cared to write in why it was that they had not been shortlisted. That seems to us to be a quite unreasonable suggestion being made by Mr England and the tribunal reject it.

	At the heart of their decision, the Industrial Tribunal believed the evidence of Ms Potts and Mr Dean. The facts stated by them in their written statements as amplified by their oral evidence were found to be proved. They were satisfied that there was nothing wrong with the process which the Council had adopted for the shortlisting procedure. They accepted Ms Potts’s evidence that she found that the applicant had failed to meet every single one of the six criteria except for the one referred to. It was a matter for her judgment and not for the Industrial Tribunal, as it seems to us, to assess why it was that the particular applicant failed to display knowledge or an understanding of housing management and relevant legislation having regard to the requirements of the post, of which we have ourselves little knowledge.

	The tribunal concluded therefore that the reason why he had not been shortlisted had nothing to do with his sex or race of which they were unaware, but had everything to do with his failure to comply with the objective criteria which had been set out and which was applied to each and every candidate. 

	The applicant in this case also complains that the Industrial Tribunal failed to make any of the necessary orders for further and better particulars or discovery and failed to have regard to the Authority’s refusal to comply with the questionnaire. 

	The Industrial Tribunal dealt with those complaint. They were of the view that Mr England had every opportunity to present his case to them in a fair and non-prejudiced manner. They were not prepared to draw any adverse inference against the Council for their failure to answer the questions which Mr England had demanded of them. We think that they were fully justified in arriving at that conclusion having regard to the circumstances in which the request was made. It is a question for the Industrial Tribunal to decide whether a failure to answer questions should lead them to draw an inference, or not. In the tribunal’s view, they could draw no adverse inference from the respondents’ behaviour in this respect. We would have agreed if we had been called upon to make the decision ourselves.

	It is clear to the tribunal, as they said at the end, that the applicant did not satisfy the selection criteria laid down by the respondent, and therefore there was no merit in his claim. 

	There is no arguable point of law, in our judgment, on this prospective appeal. If we had had power to do so we would have ordered in the circumstances of this case that the appellant pay the costs of the tribunal involved in the processing of this appeal. It is a hopeless appeal, and, in our view, should not have been made. Accordingly it will be dismissed.